IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition of Burton R. Adams :

and Joanne M. Adams, his wife :

: No. 863 C.D. 2016

Appeal of: William Dittmar and : Argued: December 15, 2016

James M. Corl :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JULIA K. HEARTHWAY, Judge1

OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: September 21, 2017

William M. Dittmar and James M. Corl (Corl)2appeal an order of the 

Court of Common Pleas of the 44th Judicial District, Sullivan County Branch (trial 

court), overruling their exceptions to a report of a Board of View (Board) issued in 

a proceeding under the Private Road Act.3 The Board recommended that Burton 

and Joanne Adams be granted the right to use an existing private road (Roadway) 

on Corl’s property. The Board found that opening the Roadway to the Adamses 

was necessary and would serve a public purpose. The trial court confirmed the 

Board’s report, and Corl appealed.

The Adamses own a 231-acre parcel of land in Colley Township, 

Sullivan County, and most of this parcel is located on top of a mountain. Corl’s 

500-acre parcel lies immediately to the west of the Adamses’ parcel. Route 87 lies 

south of both parcels. On the western side of the two parcels, Holly Hill Road 

 

1

This case was decided before Judge Hearthway’s term ended on September 1, 2017.

2

The parties stipulated that after the Board of View’s report of February 21, 2014, William M. 

Dittmar conveyed his entire interest in the subject property to James M. Corl, who is now the 

sole owner of the property at issue. 

3 Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §§2731-2891. 
2

travels north from Route 87 up the hill and ends on Corl’s parcel, approximately 

2,000 feet from the Adamses’ property. On the eastern side of these two parcels, 

Star Road, a dirt road, travels north from Route 87 in a valley, along a river.4 

Approximately one-half mile after it leaves Route 87, Star Road meets the southern 

and eastern boundaries of the Adamses’ parcel. 

In 2009, Chesapeake Corporation (Chesapeake) built the Roadway to 

provide access from Holly Hill Road, a public road, to its natural gas drilling site

on Corl’s land. Notes of Testimony at 12 (N.T. ___); Reproduced Record at 51a 

(R.R. ___). Chesapeake’s Roadway begins where Holly Hill Road meets Corl’s 

property. The Roadway crosses Corl’s property for 2,200 feet, where it meets the 

Adamses’ property line. The Roadway then continues across the Adamses’

property for 3,400 feet before it reenters Corl’s property; it continues for two

hundred yards to the gas pad on Corl’s land. Id. 

After the Roadway was built, the Adamses used the 2,200-foot stretch 

of the Roadway on Corl’s land to access their property from Holly Hill Road. 

Three years later, Chesapeake erected gates at two points on the Roadway. The 

first gate was placed on Corl’s land, close to where the Roadway connects to Holly 

Hill Road. The second gate was placed on the Adamses’ land, shortly after it 

leaves Corl’s land. The Adamses have access to the gate on their property, and at 

one time they had access to the gate on Corl’s property. Corl directed Chesapeake 

to change the lock and not to give the combination to the Adamses. 

 

4 A bird’s eye view of Holly Hill Road and Star Road may be accessed by visiting 

maps.google.com and entering “Holly Hill Road, Dushore, PA 18614” into the search bar. 

Google’s “Earth” feature provides a more detailed terrain.
3

On February 26, 2013, the Adamses filed a petition pursuant to

Section 11 of the Private Road Act, 36 P.S. §2731,5to open a private road. 

Alleging that their property was effectively landlocked, the Adamses sought the 

right to resume their use of the 2,200-foot stretch of the Roadway that was built,

maintained and used daily by Chesapeake. The trial court granted the petition and 

appointed a Board of View to inspect the properties and determine whether the 

Adamses’ use of the Roadway was necessary. The parties agreed that the site visit 

alone would provide the basis of the Board’s decision and, thus, “a full evidentiary 

hearing was waived.” Supplemental Report, 9/15/2015, at 2.

On November 18, 2013, the Board conducted a site visit. Following 

the visit, the Board issued a report dated February 21, 2014, where it made, inter 

alia, the following finding: 

f) ... Petitioners’ land is effectively landlocked due to the fact 

that the only other means of access to their land that was 

identified to the Board would be via an approximately one mile 

long unimproved logging trail located off of Star Road that 

involved an extremely steep upward and winding incline to the 

crest of the Petitioners’ land. It was observed to be 

 

5

It states:

The several courts of quarter sessions shall, in open court as aforesaid, upon the 

petition of one or more persons, associations, partnerships, stock companies, or 

corporations, for a road from their respective lands or leaseholds to a highway or 

place of necessary public resort, or to any private way leading to a highway, or 

upon the petition of the chief executive officer of any executive or administrative 

department of the State Government for a road from any public highway across 

any lands of any person, association, or corporation to the boundary line of any 

lands owned, controlled, or administered by the Commonwealth, direct a view to 

be had of the place where such road is requested, and a report thereof to be made, 

in the same manner as is directed by the said act of thirteenth June, one thousand 

eight hundred and thirty-six.

36 P.S. §2731. 
4

significantly more narrow and inhospitable than the Roadway, 

and in the opinion of the Board would be extremely expensive 

and arduous for the Petitioners to effectively and efficiently 

construct a [passable] road that would allow for safe and 

reliable transit to allow a residential construction crew to gain 

access to the Petitioners’ land. 

Board Report, 2/21/2014, at 3-4. The Board concluded that the Adamses “should 

be granted unlimited access over and upon” the Roadway. Id. at 5.

Corl filed exceptions to the Board’s report, arguing that the Adamses’

property was not landlocked for the stated reason that Star Road, an abandoned 

township road, provided “easy access” to their property. Exceptions to Report of 

Board of View and Request for Remand to Create a Record; R.R. 26a. Thereafter, 

Corl filed a supplemental objection that the Adamses’ intended use of the 

Roadway would not serve a public purpose. R.R. 27a. The trial court remanded

the matter to the Board to create a record. At the Board’s hearing on July 24, 

2015, the Adamses presented evidence. Corl did not present any evidence to 

support his exceptions. 

Burton Adams testified about the need to use the existing Roadway to 

access his property. On direct examination, Adams testified as follows: 

[Counsel]: What is the closest township road to your property?

[Adams]: Holly Hill Road. 

[Counsel]: And do you have any direct access at all from Holly 

Hill Road which is also Colley Township Road T-443 to your 

property?

[Adams]: No. 

[Counsel]: Is there a way that you can access your property 

from Holly Hill Road?

[Adams]: Yes. 
5

[Adams’ Counsel]: And describe that access to the Board []. 

[Adams]: That access is a commercial road that crosses 

[Corl’s] property two thousand one hundred and thirty-nine 

point something feet and that road is used constantly by 

Chesapeake to access the gas pad which is on the other side of 

my property and which on my property I have 3,387 feet 

approximately and there’s another couple hundred yards where 

it’s on Mr. Corl’s property and that is a gas pad and it’s 

producing and it is providing gas to the general public through a 

pipeline. 

N.T. 9-10; R.R. 48a-49a. 

Adams also testified about Star Road, a dirt road, that abuts the 

eastern border of his property, which lies in the valley. Adams testified that Star 

Road was an abandoned township road.6 Star Road ends in a logging trail on the 

Adamses’ land. However, the logging trail cannot be used to access the hilltop 

part of the Adamses’ property. Adams testified as follows: 

[Counsel]: Can you describe the alleged other access suggested 

by [Corl] to the Court?

[Adams]: Yes sir...[b]asically from where the public road 

[Route 87] ends and I can access my property it’s an old – the 

lower end of it is actually a skid road and then part way up is 

 

6

The dissent observes, correctly, that when a township road is validly terminated, it becomes a 

private road “for the use and benefit of the owners of lands through or along which it passes.” 

Schantz v. Bahry, 43 A.3d 536, 542 (Pa. Cmwlth. 2012). The dissent notes the record does not 

include evidence that the township validly terminated Star Road. However, the termination, or 

“abandonment,” of Star Road is not in dispute. Corl’s exceptions to the Board’s initial report 

described Star Road as “an abandoned township road,” as did his supporting memorandum of 

law. R.R. 26a. 

Adams explained that he owns half of Star Road where it abuts his property. N.T. 42-43; 

R.R. 81a-82a. Consistent with the law of this Commonwealth, Star Road is now a private road. 

Whether Star Road’s access to the Adamses’ land is one of limited privilege was not considered 

by the Board of View or the trial court. 
6

nothing more than a path where they skidded logs down and 

that’s how we access the property. 

[Counsel]: And is that access steep?

[Adams]: Yes. It’s over a thousand foot rise and it’s over a mile 

long to get there. 

[Counsel]: And approximately what would be the cost of 

making that road [passable] so you could access your property?

[Adams]: I don’t know an exact cost but we’re looking at over 

hundreds of thousands of dollars to do that I suspect.

N.T. 24; R.R. 63a. 

Following the hearing, the Board issued a supplemental report dated 

August 31, 2015, finding the Adamses’ land to be effectively landlocked. The 

Board explained its decision as follows: 

h) In the opinion of the Board of View, the Petitioners’ land is 

effectively landlocked due to the fact that the only other means 

of access to their land that was identified to the Board would be 

by way of an approximately one mile long unimproved logging 

trail located off of Star Road that involved an extremely steep 

upward and winding 1000 foot incline to the crest of the 

Petitioners’ land. Access via Star Road was personally 

observed by the Board to be significantly more narrow and 

inhospitable than the route from Holly Hill Road to the 

Roadway, and in the opinion of the Board the cost of 

improvement of the logging trail to allow for the safe and 

reliable transit of vehicular traffic to and from the Petitioners’

land would be prohibitively expensive and arduous for the 

Petitioners to have effectively and efficiently constructed and 

would not be financially feasible or cost-effective. 

Consequently, unless an appropriate alternate means of access 

is identified, the Board is of the opinion that the Petitioners’

land is indeed landlocked and otherwise inaccessible to the 

Petitioners for their stated use and purpose.
7

Board Report, 8/31/2015, at 6 (emphasis added).7

The Board found that the “Roadway [is] the shortest, safest, most 

convenient, accessible and reliable current means of access, which will result in no 

discernible injury to [Corl’s] Property.” Id. at 10. Accordingly, the Board 

concluded that “[the Adamses] should be granted the requested access over and 

upon [Corl’s] land for the stated purpose of constructing and accessing a seasonal 

cabin to be constructed upon [their] land.” Id. The Board did not award

compensation to Corl, noting that Corl did not ask for it. The Board further 

explained that the Roadway was maintained by Chesapeake and that the additional 

use by the Adamses would be minimal, particularly when compared to 

Chesapeake’s heavy and daily truck traffic over the Roadway.

Corl filed exceptions to the Board’s supplemental report. He argued 

that the Board erred in finding that the Adamses’ land was effectively landlocked 

and that the Adamses’ opening of the Roadway was for a public purpose. On 

March 24, 2016, the trial court overruled Corl’s exceptions and accepted the 

Board’s report. Corl appealed to this Court.

On appeal,8 Corl raises several issues. Corl contends that the 

Adamses have access to their land by way of Star Road. Although the Adamses 

 

7 Adams testified that it would be cost-prohibitive to construct a mile long road, over rocky and 

wooded terrain up a 1,000-foot incline. He estimated the cost to exceed several hundred 

thousand dollars. The Board agreed because it was confirmed by their site visit. Corl had the 

opportunity to offer rebuttal testimony, but he offered no evidence on this point. Nor did Corl 

offer evidence of alternative access to the Adamses’ parcel. Finally, Corl offered no evidence to 

support the claim raised in his exceptions that Star Road gave the Adamses “easy access” to their 

property. 

8 Appellate review of a trial court’s order confirming the opening of a private road is to ascertain 

the validity of the jurisdiction of the board of view, the regularity of the proceedings, questions 

(Footnote continued on the next page . . .)
8

may prefer to use Holly Hill Road and the existing Roadway to access their land, 

they are not entitled to the access of their choice. Corl also argues that the Board 

erred in finding that the Roadway’s use to generate natural gas for public 

consumption provides a public benefit that warrants the establishment of a private 

road.

The Private Road Act authorizes a landowner to petition for the use

of, or the creation of, a private road across another’s land to access his property. In 

re Opening Private Road for Benefit of O’Reilly, 5 A.3d 246, 284 (Pa. 2010). 

Section 12 of the Private Road Act states as follows: 

If it shall appear by the report of the viewers to the court 

directing the view, that such road is necessary, the said court 

shall direct what breadth the road so reported shall be opened, 

and the proceedings in such cases shall be entered on record, as 

before directed, and thenceforth such road shall be deemed and 

taken to be a lawful private road. 

36 P.S. §2732 (emphasis added). The standard for granting a private road petition 

is a finding that “such road is necessary.” Id. “Necessary” is not defined in the

Private Road Act. Our Superior Court has construed Section 12 as follows: 

While the [Private Road] Act does not require an absolute 

necessity, such as being completely landlocked, the mere 

inconvenience in the use of an existing road is not enough. 

Pocopson Road, 16 Pa. 15, 17 [(1851)]. The existing road must 

be of a limited privilege, Stewart’s Private Road, 38 Pa. Super 

339, 342 [(1908)], or ‘extremely difficult and burdensome’ in 

its use....

 

(continued . . .)

of law, and whether the board abused its discretion. In re Forrester, 773 A.2d 219, 221 (Pa. 

Cmwlth. 2001). 
9

Application of Little, 119 A.2d 587, 589 (Pa. Super. 1956). In short, necessity does 

not require the property to be “completely landlocked,” but necessity is more than

“mere inconvenience.” Id.

A board of view has broad authority to determine whether a private 

road is necessary. In re Laying Out and Opening a Private Road, 592 A.2d 343, 

346 (Pa. Super. 1991). “To determine what in fact is necessary the Board naturally 

has to know as a matter of law what the Act requires, and in this sense the Board 

must interpret the law.” Application of Little, 119 A.2d at 589. We review the 

board of view’s findings and conclusions for abuse of discretion. In re Forrester, 

773 A.2d at 221. The board of view’s determination must be affirmed “unless the 

record discloses that the judgment exercised was manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” Belleville v. David Cutler Group, 

118 A.3d 1184, 1195 (Pa. Cmwlth. 2015).

The most oft-quoted precedent on whether a private road is necessary

is Application of Little, 119 A.2d 587. In that case, the landowner did not claim 

that her property was landlocked or that her existing access by a public road was 

difficult or burdensome. Rather, she sought to open a private road over an adjacent 

parcel in order to facilitate her future and inchoate plan for a commercial 

development. In holding that the board of view did not err in refusing her

petition, the Superior Court reasoned that the landowner sought only an “advisory”

opinion “that she will have a cheap, easy and direct access to her contemplated 

development before she goes to the trouble of expending any money on it.” Id. at 

560. This did not constitute necessity. 

More recently, in In re Laying Out and Opening Private Road in 

Sullivan Township, Tioga County, 964 A.2d 495 (Pa. Cmwlth. 2009), this Court 
10

established the factors to be considered when deciding whether a proposed private 

road is necessary. In Sullivan Township, the members of the Hilltop Hunting Club 

used an existing private road that passed over the middle of Tri-County Hunting 

Club’s land to reach their land for 40 years. In 2003, Tri-County advised Hilltop it 

could no longer use the road unless it signed a ten-year lease. In response, Hilltop 

filed a petition under the Private Road Act, seeking continued use of the existing 

road over Tri-County’s property. The board of view granted the petition, and the 

trial court confirmed the board’s report. This Court affirmed the trial court.

In doing so, we acknowledged that Hilltop owned, by deed, a right-ofway for ingress and egress to a public road over another landowner’s parcel. 

However, the evidence showed that Hilltop’s exercise of this property right was 

not feasible. When determining necessity, we held that the factors to consider 

were the cost, topography of the land, and environmental consequences of 

constructing a new road to Hilltop’s land. The presence of the existing roadbed 

across Tri-County’s parcel that could be opened without additional construction

was specifically held to be an important factor in this determination. Id. at 504. 

We held that Hilltop’s land was effectively landlocked because there was no 

realistic access to Hilltop’s land other than by the existing private road across TriCounty’s property.

Corl contends that Application of Little is dispositive because it 

established that mere inconvenience does not demonstrate necessity. He contends 

that because the Adamses can access some part of their property by Star Road, they 

are not landlocked.9 This argument cannot be squared with either the Board’s 

 

9 Notably, the landowner in Application of Little had full vehicle access to a public road. 
11

findings or the legal principles expressed in Application of Little, which established 

that where the existing access is “extremely difficult and burdensome,” necessity is 

shown. The Board found that the closest paved and public road to any part of the 

Adamses’ parcel is Holly Hill Road. Star Road, by contrast, is a dirt road that was 

found to be “more narrow and inhospitable than the route from Holly Hill Road.” 

Board Report, 8/31/2015, at 6.10 Further, the construction of a new road to the 

crest of the Adamses’ property would be so costly as to render the Adamses’ “land 

indeed landlocked and otherwise inaccessible.” Id. In short, the principles 

expressed in Application of Little favor the Adamses, not Corl.

The trial court held that Sullivan Township was dispositive on

necessity, and we agree. As in Sullivan Township, the Adamses do not seek to 

construct a new road on Corl’s land but only to use an existing roadbed. In 

Sullivan Township, the evidence showed that the cost of constructing a new road 

up an incline of 220 feet was estimated at between $10,000 and $60,000, which 

was cost-prohibitive. Here, the Board found that building a new road up an incline 

of 1,000 feet at an estimated cost of over $100,000 was cost-prohibitive. The 

factors identified in Sullivan Township, i.e., cost, topography and the placement of 

the private road over an existing roadbed, apply with equal force here.

The dissent argues that Sullivan Township is distinguishable because 

the costly and difficult alternative access rejected by the board of view did not 

involve land owned by the petitioner, Hilltop. This is not strictly accurate. Hilltop 

had a right by deed to construct a new private road on the land in question, which 

 

10 The dissent challenges this quotation as a “misinterpretation.” The Board’s finding speaks for 

itself and is set forth, in full, on page 6, infra. Corl does not claim in his appeal that Star Road is 

“hospitable.”
12

was found not feasible by reason of cost and topography. Real property interests 

take a variety of forms, not just ownership by fee simple title. 

The trial court’s holding is also consistent with In re Private Road in 

Union Township, 611 A.2d 1362 (Pa. Cmwlth. 1992). In Union Township, the 

landowners had direct access by a public road to the western half of their property. 

They also had an easement over adjacent property from another public road to 

access the eastern half of their land for timbering. The eastern and western halves 

of the property were separated by a ravine measuring 80 feet deep and several 

hundred feet wide. The landowners petitioned to open a private road for more 

complete access to the eastern portion of their property. The board of view found

necessity for opening a private road to allow [landowners] to 

use their landlocked land located on the east side of the [ravine] 

on the ground that the easement by prescription granted by the 

trial court in the 1987 equity action [was] limited in size and 

use and that the cost of constructing a bridge across the [ravine] 

would be prohibitive. 

Id. at 1364. The board of view recommended the private road be laid out over the 

existing prescriptive easement to a width of twenty feet. The trial court confirmed 

the board’s report, and this Court affirmed the trial court. 

As in Union Township, the Adamses do not have access to the western 

part of their parcel. Star Road does not provide access to the mountainous portion 

of the Adamses’ parcel. As in Union Township, topography presents a serious 

impediment. Instead of a ravine, the Adamses confront a steep and wooded 1,000-

foot incline. In Union Township the board of view found that the cost of 
13

constructing a bridge across the ravine was prohibitive.11 Likewise here, the Board 

found that the cost of improving the logging trail to reach the mountainous part of 

the Adamses’ land was not economically feasible. 

The dissent relies upon the discussion in Mazzante v. McClintock, 976 

A.2d 648 (Pa. Cmwlth. 2009), in which the trial court refused to appoint a board of 

view because the landowner’s pleading was inadequate. The landowner’s petition 

admitted that he had access to his property from a public road and did not plead 

facts to show necessity. A trial court’s decision to deny appointment of a board of 

view is based solely on the pleading. Pope v. Muth, 481 A.2d 355, 356 (Pa. Super. 

1984). Where the pleading is sufficient, it is the board of view that gathers the 

facts and decides whether the opening of a private road is “necessary” under the 

Act. Id. Here, the pleading was sufficient. Accordingly, the Board of View then 

collected the evidence and found that the Adamses were effectively landlocked. 

Mazzante is inapposite because there was no fact finding by a board of view. 

The dissent contends that the Board improperly focused on the

difficulty of converting the logging trail on the Adamses’ property into an access 

road. However, Union Township considered the same problem, i.e., the difficulty 

of construction on the petitioner’s land. The ravine in Union Township is 

comparable to the 1,000-foot incline here. In both cases, the prohibitive cost of 

transforming the geographical features into “realistic access” satisfies the necessity 

standard enunciated in Little, 119 A.2d at 589.12 

 

11 Notably, the “cost” was not identified in specific dollar amounts in Union Township, 611 A.2d 

at 1364 (board’s finding of necessity upheld because “cost of constructing a bridge across the 

Whetstone Ditch would be prohibitive.”).

12 The dissent states that Adams “admitted that he had ‘no problem’ accessing his property.” 

Dissenting, slip op. at 6 n.5. The colloquy follows:

(Footnote continued on the next page . . .)
14

The Board’s decision is consistent with our precedent on necessity. 

The Board found that Star Road offers, at best, extremely difficult access because 

the logging trail cannot be feasibly converted into a private road given the

mountainous topography. Sullivan Township, 934 A.2d 495. For access to be 

feasible it must provide access to the entire parcel. Union Township, 611 A.2d at 

1364. We hold that the Board did not abuse its discretion in holding that opening 

the Roadway for use by the Adamses was necessary. 

Proving necessity does not end the inquiry. Our Supreme Court, in 

O’Reilly, 5 A.3d 246, held that the taking of private property for a private purpose 

is inconsistent with the United States and Pennsylvania constitutions. The 

Supreme Court did not declare the Private Road Act facially unconstitutional but, 

rather, clarified that the opening of a private road under the Private Road Act is 

 

(continued . . .)

[Counsel]: But you are able to get on this road [Star Road] right to your 

property, is that correct, to the edge of your property?

[Adams]: To the edge of my property, yes, a thousand foot short in elevation 

and a mile to get up to where I want to be.

[Counsel]: Yeah. Where you talk about a thousand foot short you mean –

[Adams]: A thousand-foot elevation.

[Counsel]: After this road meets your property if you wanted to go up to the top 

of the mountain you’d have to traverse that thousand feet?

[Adams]: Yes, sir.

[Counsel]: But you have no problem getting to your property down below?

[Adams]: No problem at that point, no. It’s from there on up it’s –

[Counsel]: Okay.

[Adams]: -- over a mile long –

[Counsel]: Okay.

[Adams]: -- and it’s very hazardous.

N.T. 30-31; R.R. 69a-70a (emphasis added).
15

subject to the constitutional restrictions that govern a taking under eminent 

domain. Id. at 258. Accordingly, the opening of a private road must have a public 

purpose, which exists where the public is the “primary and paramount beneficiary 

of the taking.” Id. (citing Middletown Township v. Lands of Stone, 939 A.2d 331, 

337 (Pa. 2007)). 

The Adamses argue that the primary and paramount beneficiary of the 

Roadway is the public because it allows Chesapeake to supply natural gas to the 

public. Additionally, the Adamses argue that the Roadway will be used by hunters 

to access the Adamses’ 231-acre parcel, which also serves the public. The 

Adamses concede that their use of the Roadway will allow them to construct a 

seasonal home, but that fact does not vitiate the overriding public purpose of the 

Roadway. 

Corl responds that the beneficiary of the Roadway is a private 

corporation, Chesapeake. Allowing the Adamses access to the Roadway will 

provide a private benefit to them, not the public. As to the Adamses’ argument 

that opening the private road will advance game management, Corl responds that 

hunters can access the Adamses’ property on foot. 

The Board found a public purpose for the opening of the Roadway. It 

relied upon Westrick v. Approval of Bond of Peoples Natural Gas Co., 520 A.2d 

963, 965 (Pa. Cmwlth. 1987), which held that the transportation and supply of 

natural gas constitutes a public use. The Board also noted that a taking does not 

lose its public character merely because a “private interest may also be benefited.” 

Belovsky v. Redevelopment Authority of Philadelphia, 54 A.2d 277, 283 (Pa. 

1947). The trial court agreed with the Board’s public purpose analysis. It also 

found that the Roadway will provide a public benefit because the Adamses have 
16

entered into a Public Access Program Cooperative Agreement with the Game 

Commission that will give hunters access to the Adamses’ property. 

Game and wildlife are renewable natural resources.13 The 

Pennsylvania Constitution requires the Commonwealth to conserve and maintain 

natural resources for the benefit of all people.14 The legislature charged the Game 

Commission with the duty to “protect, propagate, manage and preserve” game and 

wildlife populations throughout the Commonwealth. 34 Pa. C.S. §322(a). In 

executing this duty, the Game Commission is authorized to use hunting and 

trapping as means of managing wildlife populations. 34 Pa. C.S. §103(b). One 

way the Game Commission ensures adequate population management is through 

cooperative agreements with private landowners. 34 Pa. C.S. §323 (“The [Game 

C]ommission may enter into cooperative agreements with any...individual...to 

further the programs of the commission.”) (emphasis added). Under these 

agreements, the parties work in concert to improve public hunting opportunities 

and wildlife habitats on the enrolled property.

 

13 Section 2161(a) of the Game and Wildlife Code states, in pertinent part: 

The proprietary ownership, jurisdiction and control of game or wildlife living free 

in nature is vested in the Commonwealth by virtue of the continued expenditure 

of its funds and its efforts to protect, propagate, manage and preserve the game or 

wildlife population as a renewable natural resource of this Commonwealth. 

34 Pa. C.S. §2161(a) (emphasis added). 

14 Article I, Section 27 of the Pennsylvania Constitution reads: 

The people have a right to clean air, pure water, and to the preservation of the 

natural, scenic, historic and esthetic values of the environment. Pennsylvania’s 

public natural resources are the common property of all the people, including 

generations yet to come. As trustee of these resources, the Commonwealth shall 

conserve and maintain them for the benefit of all the people. 

PA. CONST. art. I, § 27 (emphasis added). 
17

The Game Commission entered into a Cooperative Agreement with 

the Adamses to allow deer hunting on their entire 231-acre parcel. Cooperative 

Agreement; R.R. 99a. Corl argues that hunters can access the Adamses’ property 

on foot from Star Road. However, the Cooperative Agreement specifically allows 

hunters to access all 231 acres of the Adamses’ parcel and contemplates that they 

will do so by vehicle. Id. The logging trail simply does not offer this 

contemplated access to the Adamses’ land. The Roadway does. We agree with the

trial court that opening the Roadway will allow hunters to reach all of the 

Adamses’ property and assist in the management of the deer population, which

principally benefits the public. 

The Board found that the “taking” from Corl was too minimal to 

warrant an award of compensation, and Corl does not challenge that holding.

15

 

The extent of a taking in a Private Road Act case is relevant and should be a factor

when considering the primary public purpose required by O’Reilly. Indeed, given 

the lack of feasible access to their land, it is the Adamses who will suffer a taking 

of the use and enjoyment of their land if they are denied use of the existing 

Roadway. In this context, we discern no abuse of discretion in the trial court’s 

holding that opening the Roadway for use by the Adamses satisfies the public 

purpose test established by our Supreme Court in O’Reilly. 

For all these reasons, we affirm the order of the trial court.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge

 

15

 In land use cases, the extent of a taking by zoning regulation is a relevant consideration as 

established in Hertzberg v. Miryam’s, 721 A.2d 43 (Pa. 1998).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition of Burton R. Adams :

and Joanne M. Adams, his wife :

: No. 863 C.D. 2016

Appeal of: William Dittmar and :

James M. Corl :

O R D E R

AND NOW, this 21st day of September, 2017, the order of the Court 

of Common Pleas of the 44th Judicial District, Sullivan County Branch dated April 

6, 2016 in the above-captioned matter is AFFIRMED.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: :

:

Petition of Burton R. Adams : No. 863 C.D. 2016

and Joanne M. Adams, his wife : ARGUED: December 15, 2016

:

Appeal of: William Dittmar and :

James M. Corl :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

DISSENTING OPINION BY

JUDGE HEARTHWAY FILED: September 21, 2017

Because Burton Adams (Mr. Adams) and Joan Adams (together, 

Adamses) already have access to their property, albeit not the portion of their 

approximately 231 acre parcel they desire to access for the purpose of constructing 

a home or cabin at the crest of his property, and because the Adamses have not 

established that the public is the primary and paramount beneficiary of the private 

road they seek to open, I respectfully dissent. 

The Board of View (Board) found that the Adamses’ land was 

effectively landlocked because the only other means of access to the crest of their 

land “would be by way of an approximately one mile long unimproved logging 

trail located off of Star Road that involved an extremely steep upward and winding 

1000 foot incline ....” (Board’s 8/31/15 Findings No. 12(h).) The Board observed 

the access via Star Road to be “significantly more narrow and inhospitable than the 
JKH - 2

route from Holly Hill to the Roadway” and stated improvement of the logging trail 

would be “prohibitively expensive and arduous for the Petitioners’ [sic] to have 

effectively and efficiently constructed and would not be financially feasible or 

cost-effective.” (Board’s 8/31/15 Findings No. 12(h).) The Board found the 

“Roadway to be the shortest, safest, most convenient, accessible and reliable 

current means of access ....” (Board’s 8/31/15 Findings, No. 22.) Accordingly, 

the Board concluded that the Adamses should be granted access over Corl’s land 

“for the stated purpose of constructing a seasonal cabin ....” (Board’s 8/31/15 

Findings, No. 24.) It is apparent from the Board’s decision that the Board was 

evaluating the Adamses’ ability to access the top portion of their property by 

means of the logging trail.1 

While initially the parties agreed that the site visit would constitute 

the basis for the Board’s decision and waived a hearing, the trial court remanded 

the matter to the Board to create a record. (R.R. at 42a.) The testimony and record 

on remand cannot be ignored.

 

1

The Adamses admit in their brief that the alternative means of access evaluated by the 

Board is actually all on their land. (Adamses’ brief at 4.)

I respectfully submit that the Majority’s statement that the Board found that access over

Star Road itself is “‘more narrow and inhospitable than the route from Holly Hill Road’” is a 

misinterpretation. (Majority opinion at 10-11 quoting Board Report, 8/31/2015 at 6.) Instead, 

the Board is actually referring to the logging trail. The Board explained:

... the only other means of access to their land that was identified 

to the Board would be by way of an approximately one mile long 

unimproved logging trail located off of Star Road that involved an 

extremely steep upward and winding 1000 foot incline to the crest 

of the Petitioners’ land. Access via Star Road .....

(Board’s 8/31/15 Findings No. 12(h), emphasis added.) The phrase “access via Star Road” refers 

to the access in the preceding sentence, i.e., the logging trail located off of Star Road. 
JKH - 3

Significantly, Mr. Adams admitted that Star Road abuts his property 

at the base and that he has access to the edge of his property via Star Road. (R.R. 

at 69a-70a, N.T. at 30-31.) The Majority even clarifies that “[a]pproximately onehalf mile after it leaves Route 87, Star Road meets the southern and eastern 

boundaries of the Adamses’ parcel.” (Majority opinion (op.) at 2.) Mr. Adams, 

however, is dissatisfied with the location of his current access, which he describes 

as “a thousand foot short in elevation and a mile to get up to where I want to be.” 

(R.R. at 69a, N.T. at 30.) Mr. Adams explained that he wanted to be at the top of 

the mountain in order to build a cabin where “it has a good view.” (R.R. at 61a, 

N.T. at 22; see R.R. at 72a, N.T. at 33.) Mr. Adams admitted he has “no problem” 

getting to his property “down below,” but stated that it is from there on up that it is 

over a mile long and very hazardous.

2

 (R.R. at 70a, N.T. at 31.) Additionally, 

while Mr. Adams described Star Road as an “abandoned” road, he testified that 

Star Road is now a “private road” that reverted back to the previous owners, which 

includes the Adamses. Significantly, Mr. Adams stated that he is able to use Star 

Road.

3

(R.R. at 67a-68a, N.T. at 28-29.) Indeed, the parties and the Board drove 

 

2 When asked whether there would be any problem building the house down below, Mr. 

Adams replied, “I don’t want to build it down below. I want to build it up on top.... I could 

build a house a lot of places but I want to build it on top of the mountain.” (R.R. at 72a, N.T. at 

33.) 

3

The Majority states the abandonment of Star Road is not a fact in dispute. This is 

misleading. While Mr. Adams said Star Road was “abandoned,” and Corl also used that term in 

his exceptions, it is unclear what is meant by the term “abandoned,” and the evidence is 

incomplete in this regard. Mr. Adams’ testimony concerning Star Road’s status and his ability to 

use Star Road is consistent with the law of this Commonwealth. When the public’s right to use a 

road is validly terminated, it is established as a private road with a right of access by the abutting 

owners, and the property consisting of the road reverts automatically and simultaneously to the 

abutting owners. In re City of Altoona; cf. Schantz v. Bahry, 43 A.3d 536 (Pa. Cmwlth. 2012) 

(finding that where township ordinance vacated road as a public road and established it as a 

(Footnote continued on next page...)
JKH - 4

to the Adamses’ property on Star Road when the Board conducted its view. (R.R. 

at 66a, N.T. at 27-28; R.R. at 82a, N.T. at 43.) 

In essence then, what the Adamses seek is a second private road from 

which to access a different portion of their property. Thus, the question this Court 

is faced with is whether the Private Road Act4compels another landowner to open 

up his private land to allow an adjoining landowner access to a specific desired 

portion of his or her property when that landowner already has access to his 

property. Relevant precedent, however, indicates that a board of view should 

evaluate whether one has access to one’s property rather than whether one has 

access to a desired portion of one’s property, such as the crest of the mountain, as 

the Board did here. Additionally, as will be explained later, the Adamses are not 

entitled to open a private road over Corl’s property because they have not 

established that the public is the primary and paramount beneficiary of the opening 

of the Roadway, as required by our Supreme Court’s decision in In re Opening a 

Private Road for Benefit of O’Reilly, 5 A.3d 246 (Pa. 2010). 

Section 12 of the Private Road Act authorizes the opening of a private 

road if it “shall appear by the report of the viewers to the court directing the view, 

that such road is necessary ....” 36 P.S. § 2732. The test is necessity, but the 

 

(continued...)

private road, landowner had the right to access private road that crossed neighbor’s land but 

access was limited to only that area within the road’s right-of-way).

4 Act of June 13, 1836, P.L. 551, as amended, 36 P.S. § 2731 – 2891.
JKH - 5

Private Road Act does not define this term. In re Packard, 926 A.2d 557 (Pa. 

Cmwlth. 2007). 

While the [Private Road] Act does not require an 

absolute necessity, such as being completely landlocked, 

the mere inconvenience in the use of an existing road is 

not enough. Pocopson Road, 16 Pa. 15, 17 [1851]. The 

existing road must be of limited privilege, Stewart’s 

Private Road, 38 Pa. Super. 339, 342 [1908], or 

“extremely difficult and burdensome” in its use....

Application of Little, 119 A.2d 587, 589 (Pa. Super. 1956). 

The Majority agrees with the Board and the Adamses that In re 

Laying Out and Opening Private Road in Sullivan Township, Tioga County, 964 

A.2d 495 (Pa. Cmwlth. 2009), provides the most relevant instruction. 

Additionally, the Majority relies on In re Private Road in Union Township, 611 

A.2d 1362 (Pa. Cmwlth. 1992), which was not cited by either party. While at first 

glance, these cases may appear to be on point, I find them to be distinguishable. 

In Sullivan Township, the only existing road providing access to the 

landowner’s property was the proposed private roadway. The Board viewed 

several alternative accesses, none of which actually existed but were subject to an 

easement, and found that none was feasible due to topographical and cost 

concerns. The board of view found that the alternative access did not effectively 

provide access to any part of the landowner’s property. The board of view’s 

focus was access to the landowner’s property, not access across his property. 

Here, the Board mistakenly focused on the cost and topography concerns 
JKH - 6

associated with accessing a specific portion of the Adamses’ property by means of 

a logging trail which runs across the Adamses’ property.

5

 

And, while Union Township appears at first glance to allow one to 

have a private road opened in order to access a specific portion of his property, that 

case is different from the case before us, both factually and procedurally. In Union 

Township, the landowner had access to the western portion of his property but 

alleged that the eastern portion of the property was landlocked because the 

property was divided by a ravine 80 to 100 feet deep and several hundred feet 

wide. Although the topography of the Adamses’ property presents challenges for 

accessing the crest of the property, Mr. Adams admitted that he has walked up to 

the top of his property. (R.R. at 70a-71a, N.T. at 31-32.) The facts here as a 

matter of law are not comparable to Union Township where one portion of the 

property was truly landlocked and physically separated from another portion. 

Additionally, procedurally, on appeal to this Court, the question of necessity was 

not at issue in Union Township.

6

 

5

It was only improvement of the logging trail across the Adamses’ property that the 

Board found to be prohibitively expensive and arduous. The Majority states that Corl did not 

offer rebuttal testimony regarding the cost or alternative access, but Corl did not Corl have to do 

so. It was the Adamses’ burden to prove necessity; however, Adams admitted he had “no 

problem” accessing his property. (R.R. at 70a, N.T. at 31.) Contrary to the Majority’s 

implication, the burden did not shift to Corl. 

6

In Union Township, the issues before this Court were (i) whether the doctrines of 

collateral estoppel and res judicata barred the private road proceedings by virtue of a prior equity 

action wherein the landowner sought an easement by prescription, which was granted, and an 

easement by necessity, which was denied and (ii) whether the owners of the property on which 

the road was being opened were entitled to a jury trial on the issue of damages. 
JKH - 7

In contrast to those case, in Mazzante v. McClintock, 976 A.2d 648 

(Pa. Cmwlth. 2009), we addressed a situation factually similar to the matter before 

us, and notably ruled it was distinguishable from Union Township. In Mazzante,

this Court upheld the denial of a petition for appointment of a board of view to 

open a private road where the landowner already had access to his property but 

sought to open a private road for access across his property to a different part of his 

property. The landowner stated that he needed the proposed access so that he and 

his contractors could get to a specific portion of his property without traversing 

two difficult and dangerous logging roads in order to build a cabin. This Court 

upheld the denial of a petition for appointment of a board of view. In doing so, we 

ruled that the facts in Mazzante as a matter of law were not comparable to Union 

Township in which one portion of the property was truly landlocked and separated 

from another portion. Mazzante, 976 A.2d at 655. We noted that the landowner in 

Mazzante “admitted to a degree of access across his property but wishe[d] to avoid 

the expense that would be required to improve that access.” Mazzante, 976 A.2d at 

655. We held that such desires did not rise to the “strictest necessity” required 

under the Private Road Act. Id.; see also Soska v. Bishop, 19 A.3d 1181 (Pa. 

Cmwlth. 2011) (upholding denial of a petition to open a private road for failure to 

establish strict necessity where petitioners admitted that a driveway on their 

property provided access from their residence to the public road but they found the 

use of their driveway to be burdensome and inconvenient in its current condition). 

Further, we stated that precedent does “not establish a principle that whenever an 

owner alleges that a road across his or her property is difficult or burdensome to 

use that the owner has shown entitlement to appointment of a board of view under 

the [Private Road] Act.” Mazzante, 976 A.2d at 654 (emphasis in original). 
JKH - 8

While the Adamses may be entitled to access to their property, they 

are not entitled to the access of their choice. The Board overlooked the Adamses’ 

admitted access to their property via Star Road, and instead, focused on the access 

across their property via the logging trail to the crest of their property. The Board 

evaluated whether the Adamses have access over their property to a specific 

portion of their property, rather than determining whether a private road is 

necessary for access to the Adamses’ property. Such misplaced focus constitutes 

an error of law and an abuse of discretion. Additionally, the Board, in concluding 

that the Adamses should be granted access over Corl’s property, found that the 

“Roadway to be the shortest, safest, most convenient, accessible and reliable 

current means of access ....” (Board’s 8/31/15 Findings No. 22.) However, 

whether something is the “shortest, safest, most convenient, accessible and reliable 

current means of access” also is not the correct legal standard. The Board 

incorrectly substituted a new legal standard for the standard of necessity as 

required by the Private Road Act. This, too, was an error of law. 

The Majority states, “Star Road may allow the Adamses to reach the 

base of their property, located in the valley, but it provides no meaningful access to 

the mountainous part, which comprises most of their 231-acre parcel.” (Majority 

op. at 11.) I respectfully submit that “meaningful” access also is not the correct 

legal standard under the Private Road Act, which requires necessity. Nonetheless, 

even accepting the Majority’s statement for the sake of argument, the top or 

mountainous portion of the Adamses’ property is “landlocked” only by the 

Adamses’ own property. The fact that the Adamses have difficulty navigating 

within their own property does not rise to the strictest necessity allowing them to 
JKH - 9

open a private road over another’s property. The effect of the Board’s and 

Majority’s decisions is to allow one to establish necessity simply by showing one 

lacks “meaningful” access to all corners of his property. This is a dangerous 

precedent that erodes private property rights.

The Private Road Act must be strictly construed. Soska. 

Additionally, “‘taking private property for private use is not favored.’” Soska, 19 

A.3d at 1188 (quoting In re Private Road in Speers Boro II, 11 A.3d 902, 906 (Pa. 

2011)); see also In re Sunoco Pipeline, L.P., 143 A.3d 1000, 1020 (Pa. Cmwlth. 

2016) (Brobson, J. dissenting) (stating “[p]rivate property rights have long been 

afforded especial protection in this Commonwealth”). I simply do not believe the 

precedent interpreting the Private Road Act authorizes a board of view and this 

Court, under these circumstances, to allow a landowner to take a neighbor’s private 

property for the purpose of acquiring additional, more convenient access to another 

portion of his property.

Moreover, even where it is determined that one is effectively 

landlocked, that no longer ends the inquiry, as it did when Sullivan Township and 

Union Township were decided. As a result of our Supreme Court’s decision in 

O’Reilly, a landowner who seeks to take another’s property in order to open a 

private road pursuant to the Private Road Act must now also establish that “the 

public is fairly regarded as the primary and paramount beneficiary” of any such 

taking. O’Reilly, 5 A.3d at 258. I agree with the Majority that the relevant inquiry 

is whether opening the Roadway to the Adamses will benefit the public. 
JKH - 10

Therefore, Chesapeake’s use is irrelevant and cannot, as a matter of law, support a 

finding of a public benefit, as the Board and trial court concluded. 

With respect to the remaining proffered public use, allowing hunters 

to access the Adamses’ property based on the Cooperative Agreement with the 

Pennsylvania Game Commission (Commission), I find the record to be insufficient 

to support a finding that the public is the primary and paramount beneficiary of the 

opening of the Roadway. The Board made no findings concerning the use of the 

Adamses’ property by hunters. In fact, the Board deemed this evidence to be 

irrelevant because the Adamses did not enroll their property with the Commission 

until December 15, 2014, or about twenty-two months after they filed their petition 

to open the Roadway. (Board op. at 5, n. 5.) Notably, the Adamses also did not 

enroll their property with the Commission until after the Board’s initial decision

and after Corl filed his exceptions, which included an assertion that no public 

benefit was found, and after the trail court ordered that the matter be reopened for 

the purpose of establishing a record for potential appeal purposes. (R.R. at 84a, 

N.T. at 45; see R.R. at 27a; R.R. at 42a, N.T. at 3.)

Moreover, “the true purpose must primarily benefit the public.” 

Middletown Township v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007) (emphasis 

in original). The evidence is clear that the use of the Adamses’ property by hunters 

is de minimis, and therefore, the public cannot fairly be regarded as the primary 

and paramount beneficiary of the opening of the Roadway. Rather, the primary 

and paramount beneficiary of the opening of the Roadway would be the Adamses 

for the stated purpose of building and accessing a cabin at the crest of the mountain 
JKH - 11

with scenic views. The Majority broadly construes the phrase primary and 

paramount beneficiary to include the hunting here. However, because the opening 

of a private road is in derogation of a private right, this Court must strictly construe 

the Supreme Court’s mandate that the public must be the primary and paramount 

beneficiary of the opening of a private road. See O’Reilly (evaluating proceedings 

under the Private Road Act pursuant to eminent domain principles); Cf. 

Middletown Township, 939 A.2d at 337 (stating that “the exercise of the right of 

eminent domain is necessarily in derogation of a private right, and the rule in that 

case is that the authority is to be strictly construed”)(internal quotations and 

citations omitted). 

 

I also respectfully disagree with the Majority’s statement that the 

“extent of a taking in a Private Road Act case is relevant and should be a factor 

when considering the primary public purpose required by O’Reilly.” (Majority op. 

at 16.) This statement conflates the concepts of determining, in the first instance, 

whether there was a taking, and if so, the amount of compensation owed. A taking 

is a taking. The extent of the taking is relevant only to determine the amount of 

compensation owed.

This Court is bound to follow our Supreme Court’s decision in 

O’Reilly. While it has been said that O’Reilly “for all intents and purposes 

rendered the [Private Road] Act constitutionally unenforceable,”7notably, the 

legislature has not amended the Private Road Act in response to the Supreme 

 

7

In re O’Reilly, 100 A.3d 689, 698 (Pa. Cmwlth. 2014) (O’Reilly II) (Leadbetter, J. 

concurring).
JKH - 12

Court’s decision. O’Reilly “establishes a framework for balancing the competing 

constitutional interests” of property owners.8 “Requiring that the public must be 

the ‘primary and paramount beneficiary of the taking’ ... is an important 

Constitutional limitation on a private citizen’s ability to take neighboring 

property.”9 

The Majority’s ruling that allowing hunters to access a section of 

one’s property means that the public is the primary and paramount beneficiary is 

too broad of an interpretation. This broad interpretation, combined with existing 

case law and the Majority’s holding which allows one to open a private road to 

access a specific portion of one’s property, sets a significant precedent. I 

respectfully submit that the Majority’s ruling erodes private property rights for 

personal convenience and a tenuous public benefit. Under the Majority’s holding, 

had the situation been reversed, Corl could have sought to open a private road 

across the Adamses’ property to get to the section of Corl’s property where the gas 

pad needed to be located for “a public purpose.” See Westrick v. Approval of Bond 

of Peoples Natural Gas Co., 520 A.2d 963 (Pa. Cmwlth. 1987) (stating the 

transportation and supply of natural gas constitute a public use). Under the 

majority’s ruling these situations are arguably no different. 

 

 

8

Id. at 699 (Cohn Jubelirer, J. concurring).

9

Id. I also note that in O’Reilly, the landowner alleged that he was landlocked as a result

of the Commonwealth’s prior exercise of eminent domain to build an interstate highway. The 

Supreme Court remanded the matter, noting that relevant details were not developed concerning 

the purported interrelationship between the Commonwealth’s exercise of eminent domain and 

the landowner’s subsequent invocation of the Private Road Act.
JKH - 13

Accordingly and respectfully, I would reverse.

__________________________________

JULIA K. HEARTHWAY, Judge